ERITREA ETHIOPIA CLAIMS COMMISSION PARTIAL AWARD Diplomatic Claim Ethiopia’s Claim 8 between The Federal Democratic Republic of Ethiopia and The State of Eritrea The Hague, December 19, 2005 PARTIAL AWARD Diplomatic Claim Ethiopia’s Claim 8 between The Federal Democratic Republic of Ethiopia and The State of Eritrea By the Claims Commission, composed of: Hans van Houtte, President George H. Aldrich John R. Crook James C.N. Paul Lucy Reed PARTIAL AWARD – Diplomatic Claim – Ethiopia’s Claim 8 between the Claimant, The Federal Democratic Republic of Ethiopia, represented by: Government of Ethiopia Ambassador Fisseha Yimer, Permanent Representative of the Federal Democratic Republic of Ethiopia to the United Nations, Geneva, Co-Agent Mr. Habtom Abraha, Consul General, Ethiopian Mission in The Netherlands Mr. Ibrahim Idris, Director, Legal Affairs General Directorate, Ministry of Foreign Affairs of the Federal Democratic Republic of Ethiopia, Addis Ababa Mr. Reta Alemu, First Secretary, Coordinator, Claims Team, Ministry of Foreign Affairs of the Federal Democratic Republic of Ethiopia, Addis Ababa Mr. Yared Getachew, Esq., Legal Advisor; Member of the State Bar of New Jersey and the Respondent, The State of Eritrea, represented by: Government of Eritrea His Excellency, Mohammed Suleiman Ahmed, Ambassador of the State of Eritrea to The Netherlands Professor Lea Brilmayer, Co-Agent for the Government of Eritrea, Legal Advisor to the Office of the President of Eritrea; Howard M. Holtzmann Professor of International Law, Yale Law School Ms. Lorraine Charlton, Deputy Legal Advisor to the Office of the President of Eritrea Counsel and Advocate Professor James R. Crawford, SC, FBA, Whewell Professor of International Law, University of Cambridge; Member of the Australian and English Bars; Member of the Institute of International Law Counsel and Consultants Ms. Michelle Costa Ms. Julie Frey Ms. Diane Haar, Esq. Ms. Amanda Costikyan Jones Mr. Kevin T. Reed Mr. Abrham Tesfay Haile, Esq. Ms. Lori Danielle Tully, Esq. Ms. Cristina Villarino Villa, Esq. PARTIAL AWARD – DIPLOMATIC CLAIM ETHIOPIA’S CLAIM 8 TABLE OF CONTENTS I. INTRODUCTION.........................................................................................................1 A. Summary of the Positions of the Parties ..........................................................1 B. General Comment ............................................................................................1 II. PROCEEDINGS ...........................................................................................................2 III. JURISDICTION ...........................................................................................................2 A. Claims Not Filed by December 12, 2001.........................................................3 B. Temporal Jurisdiction.......................................................................................4 IV. THE MERITS................................................................................................................5 A. Applicable Law................................................................................................5 B. Evidentiary Issues ............................................................................................8 C. Categories of Claims ........................................................................................8 D. Treatment of the Chargé d’Affaires.................................................................9 E. Harassment of Embassy Personnel.................................................................10 F. Seizure of Embassy Documents .....................................................................11 G. Interference with Embassy Access ................................................................12 H. Failure to Protect the Security of the Embassy and its Personnel..................14 V. AWARD......................................................................................................................15 A. Jurisdiction.....................................................................................................15 B. Applicable Law ..............................................................................................16 C. Evidentiary Issues ..........................................................................................16 D. Findings on Liability for Violation of International Law ..............................16 PARTIAL AWARD – DIPLOMATIC CLAIM ETHIOPIA’S CLAIM 8 I. INTRODUCTION A. Summary of the Positions of the Parties 1. This Claim (“Ethiopia’s Diplomatic Claim”) has been brought to the Commission by the Claimant, the Federal Democratic Republic of Ethiopia (“Ethiopia”), pursuant to Article 5 of the Agreement between the Government of the Federal Democratic Republic of Ethiopia and the Government of the State of Eritrea of December 12, 2000 (“the Agreement”). The Claimant asks the Commission to find the Respondent, the State of Eritrea (“Eritrea”), liable for loss, damage and injury suffered by Ethiopia from the injuries sustained by the Ethiopian diplomatic mission and consular post and personnel in Eritrea as a result of the Respondent’s alleged violations of the international law of diplomatic and consular relations. The Claimant requests monetary compensation. 2. The Respondent asserts that it fully complied with international law in its treatment of Ethiopia’s diplomatic and consular missions and personnel in Eritrea. The Respondent requests the Commission to dismiss Ethiopia’s Claim 8 in its entirety. B. General Comment 3. As described in the Commission’s previous Partial Awards,1 the Parties waged a costly, large-scale international armed conflict along several areas of their common frontier between 1998 and 2000. The Parties’ diplomatic relations obviously could not and did not continue unscathed. This Partial Award and the companion Partial Award issued today in Eritrea’s Claim 20 (“Eritrea’s Diplomatic Claim”) contain findings of violations of international diplomatic law, more or less serious, by both Parties. 4. However, at the outset, the Commission wishes to stress the Parties’ commendable decisions not to sever diplomatic links despite the armed conflict. One need only recall Oppenheim to appreciate the truly exceptional character of this situation: The outbreak of war at once causes the rupture of diplomatic intercourse between the belligerents, if this has not already taken place. The respective 2 diplomatic envoys are recalled. 1 Partial Award, Prisoners of War, Eritrea’s Claim 17 Between the State of Eritrea and the Federal Democratic Republic of Ethiopia (July 1, 2003); Partial Award, Prisoners of War, Ethiopia’s Claim 4 Between the Federal Democratic Republic of Ethiopia and the State of Eritrea (July 1, 2003); Partial Award, Central Front, Eritrea’s Claims 2, 4, 6, 7 & 22 Between the State of Eritrea and the Federal Democratic Republic of Ethiopia (April 28, 2004); Partial Award, Central Front, Ethiopia’s Claim 2 Between the Federal Democratic Republic of Ethiopia and the State of Eritrea (April 28, 2004); Partial Award, Civilians Claims, Eritrea’s Claims 15, 16, 23 & 27–32 Between the State of Eritrea and the Federal Democratic Republic of Ethiopia (Dec. 17, 2004); Partial Award, Civilians Claims, Ethiopia’s Claim 5 Between the Federal Democratic Republic of Ethiopia and the State of Eritrea (Dec. 17, 2004). 2 VOL. II, OPPENHEIM’S INTERNATIONAL LAW Sect. 98 (Hersch Lauterpacht ed., Longmans, 7th ed. 1952). 1 PARTIAL AWARD – DIPLOMATIC CLAIM ETHIOPIA’S CLAIM 8 5. Following the interruption of diplomatic relations in wartime, a common practice has been for States to entrust residual diplomatic and consular functions to diplomatic representatives of neutral States acting as their protecting powers.3 While it is conceivable that the appointment of neutral States serving as protecting powers in the circumstances here might have provided more effective diplomatic and consular and other services than were provided by the Parties’ respective diplomatic missions, the fact is that Ethiopia and Eritrea chose instead to attempt to maintain diplomatic relations throughout the war, despite unavoidable friction and even great personal risk for diplomats and staff. 6. Having said this, and as amplified in the section below on Applicable Law, this unusual situation has created unusual challenges for the application of diplomatic law. Certain of the core functions of a diplomatic mission – for example, “promoting friendly relations between the sending State and the receiving State” as set out in Article 3, paragraph (c), of the Vienna Convention on Diplomatic Relations4 – become obviously incongruous in wartime. Certain of the premises of effective diplomatic representation – for example, free travel, free access, intelligence gathering, ability to influence public opinion – cannot be presumed to continue without strain during hostilities. II. PROCEEDINGS 7. The Commission informed the Parties on August 29, 2001 that it intended to conduct proceedings in Government-to-Government claims in two stages, first concerning liability, and second, if liability is found, concerning damages. Ethiopia filed this Claim on December 12, 2001, and Eritrea filed its Statement of Defense on April 15, 2002. Ethiopia’s Memorial was filed on November 1, 2004, and Eritrea’s Counter-Memorial on January 17, 2005. Ethiopia did not include materials on this Claim in its Reply filings of March 10, 2005. A hearing on liability was held at the